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Oct. 5 — The chance that a consumer class can stop alleged ongoing deceptive advertising is
the big takeaway from the Ninth Circuit's recent opinion reinstating claims over Dole's
“All Natural” packaged fruit, according to one plaintiffs' attorney.

In the last sentence of the unpublished opinion, the court remanded the false advertising
case to allow the plaintiff to “pursue injunctive relief on behalf of the class,”
Stephen Gardner, head of the food law practice at The Stanley Law Group in Dallas,
said.

“Stopping fraud is always a better value than the monetary relief,” Gardner—who is
not involved in the Dole case and was not speaking about the marketing in that suit
in particular—told Bloomberg BNA.

It limited Chad Brazil to his own claim for monetary damages, saying he couldn't explain
how the damages—the price premium attributable to the “natural”
statement—could be calculated classwide.

Stop Fraud

Gardner said the possibility that Brazil can get Dole to stop marketing its products
with the natural label is much more significant than the dismissal of the class monetary
damages claims.

“Defendants would rather pay money, as long as they can keep up the practice,”
he said.

Yet, Gardner said, courts are increasingly saying that once a plaintiff learns about
the alleged deception, the plaintiff can't be fooled again.

Once a plaintiff has “wised up,” many courts say the plaintiff has no standing,
or basis, to bring injunctive relief claims on behalf of a class. So the defendant
can continue to sell food with the contested label statement, Gardner said.

Gardner said he wishes there had been more discussion on this point, but said, “That
last sentence may have more impact on food litigation that intends to stop an ongoing
practice.”

William Stern of Morrison &
Foerster in San Francisco, who represented Dole, said he couldn’t comment on the opinion.

However, he told Bloomberg BNA, this case is now unlikely to be tried before
a jury because there is no right to a jury trial for an injunctive relief claim.

Attorneys for the plaintiff didn’t respond to requests seeking comment.

Deception Point Contested

Defense attorney Dale Giali of Mayer Brown in Los Angeles told Bloomberg BNA he disagrees
with the Ninth Circuit's conclusion that the label could be found to fool reasonable
consumers.

Gali said the court relied in part on warning letters sent by the Food and Drug Administration
to other companies who labeled as “all natural” products containing synthetic citric
acid, one of the ingredients at issue in the Dole case.

The court also relied on an informal FDA policy from 1993 that defined “natural”
to mean “that nothing artificial or synthetic has been included in, or has been added
to, a food that would not normally be expected to be in the food.”

This isn’t evidence of how consumers think, Giali said. “Consumers don’t think like
the FDA.”

Giali, who represents food and beverage companies but isn't involved in this case,
also said the Ninth Circuit wasn’t saying as a general matter that juries should decide
questions of deception.

These kinds of questions are just as appropriate for summary judgment as any other,
he said.

Don't Put Case on Hold

The court also said the case shouldn’t wait while the FDA decides whether to regulate
use of the term “natural.”

Other courts, including a different panel of Ninth Circuit judges, have stayed cases
under the “primary jurisdiction” doctrine, to let the FDA have the first word on whether
and when companies should be allowed to call products “natural.”

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